Madras High Court
The National Insurance Co. Ltd vs Thiru. Murugan on 15 February, 2011
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.02.2011
CORAM
THE HON'BLE MR.JUSTICE B.RAJENDRAN
C.M.A.No.2904 of 2007
And
M.P.No.1 of 2007
The National Insurance Co. Ltd.,
Bhavani. ... Appellant
vs.
1.Thiru. Murugan
2.Thiru R.Velumani ... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the Judgment and Decree passed in MCOP.No.44 of 2004 on 19.04.2007 on the file of the Learned Motor Accident Claims Tribunal (Subordinate-judge) of Mettur, Salem District.
For appellant : Mr.J.Chandran
For respondents : Mr.T.L.Thirumalai
for Sarvabhauman Associates for R1
No Appearance for R2
JUDGMENT
The Insurance Company has come forward with this appeal against the grant of an award of Rs.5,68,000/- in respect of an injury caused to a cleaner of a JCB vehicle, in MCOP.No.44 of 2004 on 19.04.2007 on the file of the Learned Motor Accident Claims Tribunal (Subordinate-judge) of Mettur, Salem District.
2.The claimant is a cleaner of a JCB vehicle. The accident is admitted. But the liability is questioned by the Insurance company on the ground that the JCB vehicle which is insured is not covered under the policy if there is over-turning of the vehicle. The main defence by the Insurance Company is that, since the injury took place due to the over-turning of the vehicle and thereby the injured person's leg was crushed and the policy does not specifically cover for over-turning and also does not cover for any other person other than the driver, the Insurance Company cannot be held liable to pay the compensation.
3.Secondly, they would also mainly contend that the quantum of award granted by the court below is exorbitant. They would also contend that the award passed on the basis of multiplier theory in respect of an injury is un-known to law and it is not in accordance with the decisions of this Court and Hon'ble Supreme Court. Further, the various headings including loss of earning power after applying the multiplier theory and on every other heading which is given is only a repetition and the amounts have been given exorbitantly and they would also like to point out that even the amount of Rs.50,000/- awarded under the headings loss of marital life, even though there is no proof for any loss to the marital life and loss of earning capacity separately is not in consonance with the Hon'ble Full Bench of this Court. Therefore, the grant of an award of Rs.5,68,000/- awarded by the court below is very very high. On this ground also, they oppose the grant of compensation. Hence, they pray for dismissal of the claim petition.
4.The learned counsel for the respondent/claimant would contend that the copy of the policy was marked by them as Ex.P.10 and the original true copy of the policy has been marked by the Insurance Company as Ex.B1. But as per the policy, there is no clause which specifically says that the policy is not covered in respect of over-turning of the vehicle. The annexures have not been produced. As per the decision of the Hon'ble Supreme Court, if there is no specific proof from the policy produced into the Court for prohibition in respect of the coverage, then the presumption would be that the policy covers everything including the over-turning of the vehicle. Therefore, the defence that the policy does not cover over-turning of the vehicle is not open to the Insurance Company was the main argument of the learned counsel for the respondent.
5.He would also contend that though the Officer of the Insurance Company has been examined, he has not specifically denied in respect of the policy, but he also has accepted that pay and recovery is permitted. As far as the quantum is concerned, he would contend that as per the Doctor's evidence, there is 71% disability and amputation of the leg has been done. Therefore, his future earning capacity is totally lost. Hence, the award granted by the court below is fair, reasonable and correct. Hence, would plead for the dismissal of the appeal.
6.The owner of the vehicle, respondent No.2 though had appeared through an Advocate in the lower court, inspite of the notice being served on him in the Appellate Court, has not engaged an Advocate and not appeared in court. His name has been printed yet none appeared. No representation for the owner of the vehicle.
7.Heard all the parties concerned. The short point for consideration in the appeal is
(i)whether the Insurance Company would be liable to pay the compensation in respect of over-turning of the JCB also?
(ii)Whether the amount of compensation granted by the court below is fair, reasonable and correct?
8.The accident is admitted. According to the claimant, the claimant was a cleaner of the vehicle. He was assisting in the operations. He was standing separately away from the vehicle. But when the accident took place, the vehicle cap-sized or toppled and in that process, his leg was crushed under the vehicle. He was admitted in the hospital. His left leg has been amputated. He was originally admitted in the Little Flower Hospital in Kerala for two days and in Amirtha Hospital for five days and subsequently, in Ganga Hospital, Coimbatore for a period of 18 days. Totally, he was in the hospital for 25 days and his left leg has been amputated. He was also done emergency fasciotomy and femoral artery reconstruction on 15.10.2003. He was advised below knee amputation for lower limb gangrene which he refused. He took discharge from the hospital against the medical advise on 17.10.2003 and came to Ganga Hospital.
9.According to the evidence of P.W.1, because of the injury and loss of leg his whole future life is lost. His earning capacity is lost. As he was only 18 years at the time of the accident, his future prospect of marriage is lost and even his marital life would be affected because of the amputation of the left leg and the Doctor who was examined as P.W.2 has certified that he had 71% disability and when there is 71% disability, even in the case of injury, multiplier theory could be adopted. He was earning a sum of Rs.1,500/- per month as a cleaner and his entire amount has been lost and future prospectus has been lost. Therefore, he would contend that the compensation awarded is fair, reasonable and correct. The learned counsel for the respondent/claimant would also contend that the medical expenses incurred by the claimant vide various bills produced in the lower Court itself would go to Rs.1,58,735/- which has been rightly proved, accepted and granted by the court below as it is accepted by documentary evidence, it could always be accepted.
10.Contra, the learned counsel for the appellant would specifically contend that the policy in this question is a main point to be considered. The original policy is marked as Ex.B1. He would contend that there is a specific prohibition. Normally, in a question of JCB, the policy does not cover for toppling or cap-sizing. There is a extra premium which is to be paid specifically for capsizing. In this case as per the evidence of R.W.1, the accident took place on 17.10.2003. On that day, the extra premium for capsizing the vehicle was not paid. On 27.10.2003, after the accident, the owner has paid the premium of Rs.9,000/- and odd regarding the cap-sizing of the vehicle. Therefore, it is very clear that, on the date of the accident, the vehicle is not covered by the policy, as he has not paid the particular premium for capsizing.
11.Unfortunately, though the policy is marked as Ex.B1 by the Insurance Company and R.W.1 has been examined, the conditions of the policy or the enclosure to the policy has not been marked in this case either by the petitioner or by the Insurance Company. From a reading of the first page of the policy, there is nothing which specifically says that the Insurance Policy does not cover for the capsizing of the vehicle except the ipse dixit of the oral evidence of R.W.1. As per the decision of the Hon'ble Supreme Court, unless the entire policy with the enclosure with specific conditions are marked to establish the fact that the policy does not cover a particular act, namely, the over-turning of the vehicle, it is not open to the Insurance Company at this point of time to allege before the Court that they are not liable to pay the amount.
12.The normal condition is that the policy covers any act of accident. Admittedly, it is an accident. If he want to say that there is an extra premium for even in case of over-turning, then this fact has to be proved by the Insurance Company. Unfortunately, this factor has not been proved in the manner known to law by producing the exact specific conditions prohibiting the Insurance Company from payment. When that particular evidence is not available, as rightly pointed out by the court below, the liability cannot be shunned away by the Insurance Company.
13.At the same time, as rightly pointed out by the Insurance Company, if the petitioner is only an cleaner, he also is not covered by the policy, because premium is paid only for the driver. But the learned counsel for the respondent would also contend that, he can treated as a third party because, when the accident took place, he was not in the vehicle and was standing away. But the vehicle toppled and fell down on him. At that point of time, he was only a by-stander and not a cleaner. He was not doing cleaning work but was a person standing outside. Therefore, he would even come under the category of third party. When the vehicle is insured, as a third party, the liability should be on the Insurance Company which argument is also plausible, legal and correct. Therefore, under the question of liability, this Court is clear that the Insurance company would be held liable for the injury caused to the claimant who is admittedly involved in the accident.
14.The next point raised by the Insurance Company is that the driver of the vehicle though had a licence had an endorsement for a motor vehicle but it does not have specific endorsement for driving JCB which is a heavy vehicle. Therefore, it would also be a violation of policy condition. When there is an violation of policy condition, they cannot be held liable. But time and again this Court and the Hon'ble Supreme Court has stated that when there is an licence and only when there is a specific category not available, it is always open for the Insurance Company to pay and recover from the original owner as the persons who are affected cannot be deprived from the task of getting it from the owner of the vehicle. Though it is violation of the policy condition, it would be totally absolved by the Insurance Company at the same time the Company could be protected by recovery from the owner of the vehicle.
15.Under those circumstances, this Court comes to the conclusion that it is a case where the Insurance Company will be held liable to pay but at the same time, they will be entitled to recover the same from the owner of the vehicle, namely, the second respondent. Hence, the first question is answered accordingly.
16.As far as the quantum is concerned, no doubt the injured person is 18 years old. He has sustained serious injuries. There is amputation of the left leg. He has been hospitalized for more than 25 days. He was put to severe pain and sufferings and the Doctor has certified that he has obtained 71% disability and he cannot walk without the help and assistance of somebody else. His future prospectus of life including the marital life is lost. If we analyse the quantum basing on this background, it is not in dispute that the lower court has awarded under the following headings:
a)Grievous Injury 25,000 X 2 injuries : Rs. 50,000/-
b)Simple Injury (5,000) : Rs. 7,500/-
c)Medical expenses (P6) : Rs.1,58,735/-
d)Permanent disability : Rs. 71,000/-
e)Extra Nourishment : Rs. 20,000/-
f)Transport Expenses : Rs. 20,000/-
g)Pain and Suffering : Rs. 50,000/-
h)Loss of Married Life : Rs. 50,000/-
i)Loss of income
15,000X12=Rs.18,000 p.a=Rs.90,000 : Rs. 50,000/-
j)Loss of Earning Power : Rs. 50,000/-
Total : Rs.5,67,235/-
Rounded off to : Rs.5,68,000/-
17.From a reading of the award, it is very clear that for the injury itself, the lower court has awarded under three different headings, namely, grievous injury, simple injury and permanent disability. Then again it has awarded compensation for loss of income and loss of earning power which is totally not in consonance with the Hon'ble Full Bench of this Court. All these awards granted in different headings are over-lapping and repetition. It is deprecated by the Hon'ble Full Bench decision of this Court.
18.Now disregarding these awards, when we analyse here for fair, and reasonable award, as rightly pointed out by the learned counsel for the respondent, normally the multiplier theory will not be adopted in the case of injury. But here it is a case of amputation of the left leg of an young person of 18 years age and whose future earning capacity is lost as he will not be in a position to do the same work especially as a cleaner continuously thereafter and it is also an admitted case that the claimant would say that he was earning Rs.1,500/- per month which is very meagre and reasonable, this amount would be affected.
19.Therefore, this is the fittest case where we can even adopt the multiplier theory and fixing his own salary which has been fixed, though a higher salary could be fixed. If Rs.1,500/- is taken into consideration as salary per month and as per Schedule II, if multiplier of 16 is adopted, then for 71% permanent disability, the amount works out to Rs.2,04,480/- for injuries and loss of earning power. As far as the medical expenses are concerned, since medical bills are produced vide Ex.B6, as stated by the lower court, the entire amount of Rs.1,58,735/- is awarded and it is confirmed. The lower court has awarded a sum of Rs.20,000/- each under the heads of extra-nourishment and transport expenses which according to me is fair, reasonable and correct. The lower court has awarded a sum of Rs.50,000/- each under the heads of pain and sufferings and loss of maried life, which I feel is not correct and hence the award amount is reduced to Rs.25,000/- each.
20.In the result, the award amount is modified as follows:
for injuries and loss of earning power : Rs.2,04,480/-
for pain and suffering : Rs. 25,000/- for loss of married life : Rs. 25,000/- for transport expenses : Rs. 20,000/- for extra-nourishment : Rs. 20,000/- for medical expenses : Rs.1,58,735/- Totally : Rs.4,53,215/-
21.In the result, this appeal is partly-allowed reducing the compensation from Rs.5,68,000/- to Rs.4,53,215/- (Rupees Four Lakhs Fifty Three Thousand Two Hundred and Fifteen Only) along with the interest at the rate of 7.5% per annum from the date of the claim petition till the date of deposit of compensation.
22.It is further made clear that the Insurance Company is at liberty to proceed against the owner of the vehicle for recovery of the same. It is now represented that the Insurance Company has deposited the entire amount. The Insurance Company is permitted to withdraw the excess amount paid by them. The claimant is permitted to withdraw the amount awarded to him. No costs. Consequently, the connected miscellaneous petition is also closed.
pri To
1. Learned Motor Accident Claims Tribunal (Subordinate-judge) of Mettur, Salem District